Considered and decided by Anderson,
Presiding Judge; Klaphake, Judge; and Crippen, Judge*.

U N P U B L I S H E D O P I N I O N

G. BARRY ANDERSON, Judge

On appeal from an order of
indeterminate commitment as a sexual psychopathic personality (SPP) and a
sexually dangerous person (SDP), appellant argues that (1) the district court
abused its discretion when it admitted results of psychological and actuarial
tests without establishing the foundational reliability of those tests as is
required by the second prong of the Frye-Mack test; (2) his
constitutional rights to substantive due process and the protections of a
criminal justice system were violated during the commitment proceedings; and
(3) the evidence was insufficient to support the court’s finding that he is an
SDP and an SPP and that commitment is the least-restrictive treatment
alternative. We affirm.

FACTS

Appellant
Kirk Fugelseth was first charged with sex crimes against children in 1993,
after he molested two children in Oregon.
He pleaded guilty and was sentenced to 10 years probation and was
required to participate in individual, outpatient therapy. He received treatment from a therapist in
Oregon until 1994, when he moved to Moorhead.
From 1994 until 1997 he continued treatment with a therapist in the Fargo-Moorhead
area. He continued to molest children
while he was receiving therapy, although those incidents were neither
discovered nor prosecuted.

In
December 1997, while vacationing in Arizona with his girlfriend, Sheila
Lunsden, and her nine-year-old daughter, B.L., Lunsden caught Fugelseth
attempting to molest B.L. Fugelseth
admitted that he had been sexually molesting B.L. for approximately three
months. Lunsden called the police, who
arrested Fugelseth for attempted child molestation. An Arizona court sentenced him to 12 months in prison and
lifetime probation.

Upon
returning to Minnesota after Fugelseth’s arrest in Arizona, Lunsden contacted
police in Moorhead concerning Fugelseth’s admitted molestation of B.L. Lunsden
told police that Fugelseth had accessed child pornography on the Internet, and
in January 1998, United States marshals executed a search warrant on
Fugelseth’s computer and found approximately 20 images of child pornography.

After
serving eight months in prison in Arizona, Fugelseth was extradited to
Minnesota to face additional charges relating to the molestation of B.L. On March 17, 1999, he pleaded guilty to
second-degree criminal sexual conduct. The
court sentenced him to 45 months in prison and ten years of supervised release. Fugelseth began serving his sentence at
Minnesota Correctional Facility (MCF) - St. Cloud, but was transferred to
MCF-Moose Lake so that he could participate in that facility’s sex-offender
treatment program. The following
December he completed phase 1 of the treatment program.

In
October 2000, United States marshals issued a detainer charging Fugelseth with
possession of child pornography, and the federal district court sentenced him
to 60 months in prison for that offense.
That same month Fugelseth was transferred from MCF-Moose Lake to
MCF-Lino Lakes to proceed with phase 2 of his sex offender treatment program.

In
March 2001, Fugelseth was transferred to the Federal Correctional Institution
in Oxford, Wisconsin, to begin serving his sentence on the
child-pornography-possession conviction.
In August 2001 he was transferred to the Federal Correctional
Institution in Butner, North Carolina (FCI-Butner) so that he could participate
in that facility’s sex-offender treatment program. As part of the FCI-Butner treatment program, Fugelseth was
required to make a full disclosure of his victims of sexual abuse, including
those victims who were never discovered by law enforcement personnel. Fugelseth made a “victim list” disclosing
that, when he was between the ages of 14 and 36, he sexually molested 31 boys
and girls between the ages of three and 14.
Many of the incidents involved “grooming” behavior, in which Fugelseth
would earn the victim’s trust through gifts and favors over an extended period
of time before engaging in sexual activity.
Many of the incidents involved vaginal or anal penetration. Additionally, many of the victims were
children over whom Fugelseth held a position of authority. Fugelseth successfully completed the
FCI-Butner program and was discharged from the program with a recommendation
from the program staff that he be released into the community under intense
supervision.

In
January 2003, a representative of the Clay County Social Services Department
filed a petition for civil commitment seeking to have Fugelseth committed as a
sexual psychopathic personality (“SPP”) and as a sexually dangerous person
(“SDP”). While pursuing this petition,
the Clay County Attorney’s office obtained a court order, pursuant to Minn.
Stat. § 253B.185, subd. 1b (2002), requiring personnel at FCI-Butner to turn
over copies of all treatment records relating to Fugelseth. Although the district court in Clay County
did not have jurisdiction over the FCI-Butner records, authorities at
FCI-Butner agreed to provide the requested information. The records provided to the county included
Fugelseth’s victim list.

The
district court appointed Dr. Robert G. Riedel, Ph.D., to examine Fugelseth to
determine if he met the criteria for commitment as an SPP or SDP. The county retained Dr. Harry M. Hoberman,
Ph.D., to provide an additional expert opinion on whether Fugelseth met the SPP
and SDP criteria. On February 20, Dr.
Riedel filed a report in which he opined that Fugelseth met the statutory
criteria of an SDP but not the criteria of an SPP. Two days later, after discussing the matter with attorneys for
Fugelseth and for the county, he submitted an addendum to his report stating
that he had determined that Fugelseth did not meet the criteria of either an
SPP or an SDP. On March 27, Dr.
Hoberman submitted a report opining that Fugelseth met the statutory criteria
for both an SPP and an SDP.

Over
the course of a 12-day trial, the district court heard testimony from
Fugelseth, Dr. Riedel, Dr. Hoberman, and Lunsden. Much of the testimony concerned the results of various
psychological and actuarial tests to which Fugelseth had submitted during
treatment in Oregon, Minnesota, and at FCI-Butner. Dr. Riedel and Dr. Hoberman stipulated that these tests are commonly
accepted and relied on in SPP/SDP commitment cases.

Dr.
Riedel found that Fugelseth suffered from a “sexual, personality, or other
mental disorder or dysfunction” and that his test results and history indicate
a diagnosis of pedophilia and personality disorder not otherwise
specified. Dr. Riedel testified on
direct examination that Fugelseth is characterized by a “high level of
inability to control his impulses”, but in his written report and on
cross-examination he indicated that Fugelseth has the ability to control his
sexual impulses. Dr. Riedel expressed
concern with a variety of factors bearing on Fugelseth’s ability to control his
sexual misconduct and his likelihood to re-offend, including the nature and
frequency of his previous misconduct, the make-up of his victim pool, and the
fact that Fugelseth had previously continued to engage in inappropriate sexual
conduct even while on probation and receiving treatment. Dr. Riedel also testified that Fugelseth has
improved in some areas because of treatment but that he still remained
dangerous or potentially dangerous to the public and that there is no
definitive evidence that sex-offender treatment reduces recidivism. Still, Dr. Riedel expressed the opinion that
Fugelseth did not meet the criteria for commitment as either an SPP or an
SDP.

Dr.
Hoberman testified that Fugelseth’s conduct with respect to sexual matters has
been characterized by emotional instability, impulsiveness in both initiation
and continuation of sexual offenses, lack of customary standards of good
judgment, and a failure to appreciate the consequences of his actions. As evidence of Fugelseth’s inability to
control his sexual impulses, Dr. Hoberman noted that Fugelseth continued to re-offend
even while he was on probation and receiving treatment due to previous sex
offenses. Dr. Hoberman opined that
Fugelseth has shown an utter lack of ability to control his sexual
impulses. Dr. Hoberman also noted that
Fugelseth has participated in treatment only when it was ordered by the court
or offered as a consequence of his criminal convictions. Dr. Hoberman also testified, as did Dr.
Riedel, that there is no definitive evidence that sex-offender treatment
reduces recidivism. Dr. Hoberman
concluded that Fugelseth met the criteria for classification as both an SPP and
an SDP, that he posed a high level of risk for re-offending, that he presented
a danger to the public, and that the Minnesota Sex Offender Program (“MSOP”)
was the only appropriate placement option for Fugelseth.

The
district court concluded that Fugelseth met the criteria for commitment as both
an SPP and an SDP and issued an interim order requiring MSOP personnel to file
a report with the court within 60 days, as required by Minn. Stat. § 253.18,
subd. 2. The MSOP report indicated that
Fugelseth was diagnosed with “pedophilia, sexually attracted to both males and
females, nonexclusive type” and stated that he continued to meet the criteria
for classification as both an SPP and an SDP and needed continued comprehensive
sex offender treatment in a residential setting. The report recommended placement in the sex-offender program at
Moose Lake and St. Peter.

The
district court concluded that Fugelseth met the statutory requirements for
commitment as both an SPP and an SDP as defined in Minn. Stat. § 253B.02,
subds. 18(b) and 18(c), and that MSOP offered the appropriate and
least-restrictive alternative for him to receive the treatment he
required. On September 8 the court
issued an order committing Fugelseth to the Minnesota Sex Offender Program at
Moose Lake and St. Peter for an indeterminate amount of time. This appeal followed.

D E C I S I O N

I.

In Minnesota, the
two-pronged Frye-Mack standard governs admissibility of scientific
evidence. State v. Kromah, 657
N.W.2d 564, 565 n.2 (Minn. 2003). The Frye-Mack
standard requires, first, that experts in the field widely share the view that
the testing results are scientifically reliable, and second, that the person
conducting the specific test complied with appropriate standards and
controls. State v. Roman Nose,
649 N.W.2d 815, 819 (Minn. 2002). The
standard of review for admissibility determinations under Frye-Mack is
also two-pronged. Goeb v. Tharaldson,
615 N.W.2d 800, 815 (Minn. 2000).
Conclusions about whether a technique is generally accepted are
questions of law that are reviewed de novo. Id. “[D]eterminations under the second prong,
foundational reliability, are reviewed under an abuse of discretion standard.” Id. The parties here stipulated that all of
the psychological and actuarial tests relied on by Dr. Riedel and Dr. Hoberman
are commonly accepted and relied on in SPP/SDP commitment cases
and agree that the first prong of the Frye-Mack standard was met. But instead of holding a separate hearing
on the reliability prong of the Frye-Mack standard, the district court
instructed the parties that they should use cross-examination during the
hearing on the merits to call the foundational reliability of any test into
question.

Fugelseth argues
that the foundational reliability of the tests was not sufficiently established
at the hearing to meet the second prong of the Frye-Mack test. He contends that testimony from both experts
indicated that the tests used could not accurately predict his chances of
recidivism because the tests do not include, in their normative samples,
persons who have completed an extensive sex-offender treatment program. Therefore, he contends, the tests lacked
foundational reliability, and no evidence concerning the tests should have been
admitted. The state argues that because
the experts were subjected to detailed cross-examination the foundational
reliability requirement of the Frye-Mack test was met and Fugelseth’s
argument focusing on his successful completion of treatment goes only to the
weight of the evidence and not to its admissibility. The state also points out that some of the tests mentioned in the
court’s order do include treated sex offenders in their normative samples.

A
district court’s evidentiary ruling on the admissibility of an expert opinion
rests within the sound discretion of the district court and will not be
reversed unless it is based on an erroneous view of the law or it is an abuse
of discretion. Benson v. N. Gopher
Enters., Inc., 455 N.W.2d 444, 445-46 (Minn. 1990). The district court has
“considerable discretion in determining the sufficiency of foundation laid for
expert opinion.” Reinhardt v. Colton, 337 N.W.2d 88, 92 n. 1 (Minn.
1983). In this case, the district court
chose to use the primary hearing on the merits as the forum for addressing the
reliability of the psychological and actuarial tests rather than conducting a
separate Frye-Mack hearing. The
record indicates that the parties were given adequate opportunity to address
their reliability concerns at the hearing.
The district court did not abuse its discretion when it admitted results
from the tests into evidence.

Fugelseth
also argues that, by requiring the reliability of the psychological and
actuarial tests to be addressed in cross-examination at the hearing on the
merits, the district court improperly shifted the burden establishing
reliability to Fugelseth. “The
proponent of scientific evidence has the burden to establish the proper
foundation for the admissibility of the test by showing that the methodology
used is reliable and in the particular instance produced reliable
results.” Goeb, 615 N.W.2d at
816. But a party is not entitled to
reversal of a judgment based on an erroneous evidentiary ruling unless the
error was prejudicial. New Market
Township v. City of New Market, 648 N.W.2d 749, 755 (Minn. App. 2002).

Here
the shifting of the burden was harmless error.
As the district court noted in its findings of fact, in In re Linehan
the supreme court stated that base rate statistics such as those at issue in
these psychological and actuarial tests are a factor that courts should use in
determining whether a person should be committed as an SPP or SDP. 518 N.W.2d 609, 614 (Minn. 1994) (“Linehan
I”). Therefore, the district court
was obligated to consider the psychological and actuarial tests in its decision
and any question of their reliability would only affect the weight the court
afforded them and not their admissibility.
Because the reliability of the psychological and actuarial tests was
sufficiently established in the hearing and the district court was obligated to
consider the results of the psychological and actuarial tests in its decision,
Fugelseth was not prejudiced by the fact that the burden of proving the
reliability of the psychological and actuarial tests was shifted to him.

II.

Fugelseth also argues that his
constitutional rights to substantive due process were violated in several ways
during the commitment proceedings. The
constitutionality of a statute is a question of law. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722
(Minn. 1999). “Minnesota statutes are
presumed constitutional, and our power to declare a statute unconstitutional
should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364
(Minn. 1989). A party challenging the
constitutionality of a statute bears the burden of demonstrating that the
statute is unconstitutional. State
v. Clausen, 493 N.W.2d 113, 115 (Minn. 1992). In determining whether a civil commitment law violates
substantive due process, a court subjects the law to strict scrutiny and places
the burden on the state to show that the law is narrowly tailored to serve a
compelling state interest. In re
Linehan, 594 N.W.2d 867, 872 (Minn. 1999) (Linehan IV). Fugelseth concedes that the state has a
compelling interest in protecting the public from sexual violence and
rehabilitating the mentally ill.

Fugelseth first argues that Minn. Stat. §
253B.185, subd. 1 (2002), which establishes the procedure for civilly
committing individuals, is unconstitutional because it is not narrowly tailored
to meet the state’s compelling interest of protecting the public from sexual
violence and rehabilitating the mentally ill.
He claims that the definitions of “sexual psychopathic personality” and
“sexually dangerous person” on which the statute relies do not sufficiently
narrow the class of individuals they target because the definitions take into
account only a person’s past and cannot account for changes that have resulted
from treatment. Therefore, Fugelseth
claims, the statute is overly broad because it allows a person to be committed
as an SPP or SDP even after they have been cured of their sexual deviancy.

Under the relevant
statutes,

“Sexual psychopathic personality” means the
existence in any person of such conditions of emotional instability, or
impulsiveness of behavior, or lack of customary standards of good judgment, or
failure to appreciate the consequences of personal acts, or a combination of
any of these conditions, which render the person irresponsible for personal
conduct with respect to sexual matters, if the person has evidenced, by a
habitual course of misconduct in sexual matters, an utter lack of power to
control the person’s sexual impulses and, as a result, is dangerous to other
persons.

Minn. Stat. §
253B.02, subd. 18b (2002).

A “sexually
dangerous person” means a person who:

(1) has engaged in a
course of harmful sexual conduct as defined in subdivision 7a;

(2) has manifested a
sexual, personality, or other mental disorder or dysfunction; and

(3) as a result, is
likely to engage in acts of harmful sexual conduct as defined in subdivision
7a.

Minn. Stat. §
253B.02, subd. 18c(a)(2002).

Fugelseth’s
arguments are without merit. The use of
the present tense in Minn. Stat. § 253B.02, subd. 18b, (e.g. “the existence
of”, “which render the person”, “is dangerous”) makes it clear that a present
condition is necessary to meet the criteria of a “sexual psychopathic
personality.” Additionally, in
interpreting Minn. Stat. § 253B.02, subd. 18c(a) in Linehan IV, the
supreme court stated that the “Minnesota SDP Act requires evidence of past
harmful sexual behavior and a present qualifying disorder or dysfunction
that makes future dangerous conduct highly likely.” 594 N.W.2d at 874 (emphasis added). So even though subdivision 18c(a)(2) speaks in the past tense, Linehan
IV makes it clear that the actual requirement is a present disorder. Therefore, if a person has been cured of the
disorder, that person would not be subject to commitment as an SPP or as an
SDP.

Fugelseth’s
argument that participation in sex-offender treatment programs has no effect on
a court’s decision to commit a person as an SPP or SDP is also without
merit. In Linehan I, the supreme
court set out a nonexclusive list of factors that should be considered by a
court, if evidence is presented, in deciding whether a person poses a serious
danger to the public. 518 N.W.2d at
614. Among the factors is “the person’s
record with respect to sex therapy programs.”
Id. If evidence of a
person’s previous participation in a sex-offender treatment program is
presented, therefore, the court is obligated to consider that treatment in
reaching its decision on commitment.

Fugelseth
next argues that Minn. Stat. § 253B.185, subd. 1b, giving the petitioning
county attorney access to confidential records, violates his substantive due
process rights because it allowed a document he was required to create to
successfully complete treatment, his victim list, to later be used against him
in the commitment proceedings. Therefore, he contends, his sincere attempt to
rehabilitate himself became a detriment to his liberty interests. He claims the statute is not narrowly
tailored because it targets persons who have successfully completed
sex-offender treatment programs and who should not be subjects of the
commitment process.

The
state argues that the statute does not violate substantive due process rights
because it promotes the important purpose of having well-informed examiners,
attorneys, and courts involved in the SPP and SDP commitment process and
thereby ensures that erroneous commitment decisions will not be made. Therefore, the state argues, the statute
does not broaden the applicability of section 253B.185 but instead only ensures
that the commitment statute is properly applied.

Minn. Stat. §
253B.185, subd. 1b, provides that

prior to filing a
petition for commitment as a sexual psychopathic personality or as a sexually
dangerous person, and upon notice to the proposed patient, the county attorney.
. . may move the court for an order granting access to any records or data, to
the extent it relates to the proposed patient, for the purpose of determining
whether good cause exists to file a petition and, if a petition is filed, to
support the allegations set forth in the petition.

The court may grant the motion if:
(1) the department of corrections refers the case for commitment as a sexual
psychopathic personality or a sexually dangerous person; or (2) upon a showing
that the requested category of data or records may be relevant to the
determination by the county attorney.

Minn. Stat. § 253B.185, subd. 1b
(2002).

In order to assure that persons are
not improperly subjected to involuntary civil commitment proceedings, it is
important that authorities in charge of the proceedings are well informed on
the relevant characteristics of the proposed patient. SeeIn re D.M.C., 331 N.W.2d 236, 238 (Minn. 1983)
(stating that the greater the quantity of relevant, information an examiner in
a commitment proceeding receives, the better the opportunity for a complete
evaluation of the proposed patient).
The statute at issue here provides access to information necessary to
ensure the integrity of the civil commitment process. This purpose would be frustrated if the person subject to
commitment was able to limit the county’s record-gathering efforts to include
only those records that are neutral or that serve the person’s interest in avoiding
commitment. As such, the statute is
narrowly tailored and does not violate Fugelseth’s substantive due process
rights.

Fugelseth also claims that his commitment pursuant to the SPP and
SDP laws violates his substantive due process rights because commitment is
clearly for punitive, rather than rehabilitative, reasons. As evidence of this assertion he points out
that (1) the state’s expert testified at his commitment hearing that there is
little evidence suggesting that treatment has any impact on recidivism rates,
and (2) in July 2003, Minnesota Governor Tim Pawlenty signed an executive order
prohibiting the administrative release of any patients from MSOP.

The supreme court rejected the
argument that civil commitment is for punitive purposes in In re Blodgett,
stating:

[I]t
is not clear that treatment for the psychopathic personality never works… But
even when treatment is problematic, and it often is, the state’s interest in
the safety of others is no less legitimate and compelling. So long as civil
commitment is programmed to provide treatment and periodic review, due process
is provided.

In re Blodgett, 510 N.W.2d 910,
916 (Minn. 1994) cert. denied, 513 U.S. 849 (1994). The governor’s executive order does not
affect our rejection of Fugelseth’s argument.
The executive order does not state that no patient in the MSOP system
may be released. It states that no
patient may be released unless the release is required under the law or ordered
by a court. The order does not announce
a change in the law or a change in the purposes of the MSOP system.

As
his final constitutional challenge, Fugelseth claims that, because the MSOP
system has ceased to be rehabilitative and instead has become punitive in
nature, the civil commitment process amounts to a criminal proceeding and so he
was entitled to all of the protections of the criminal justice system. He asks that the case be remanded so that he
can be tried with “all the criminal protections in place.” As we have already rejected the proposition
that the civil commitment statutes serve a punitive purpose, we find no merit
in Fugelseth’s argument.

III.

To
commit a person as an SPP or as an SDP, the statutory requirements for
commitment must be proved by clear and convincing evidence. Minn. Stat. § 253B.18,
subd. 1 (2002); see Minn. Stat. § 253B.185, subd. 1 (2002) (provisions
of section 253B.18 apply to commitments as sexual psychopathic personality and
sexually dangerous person). Clear and
convincing evidence is more than a preponderance of the evidence but less than
proof beyond a reasonable doubt. State
v. Johnson, 568 N.W.2d 426, 433 (Minn. 1997). Fugelseth claims that there was not clear and convincing evidence
that he met the criteria for commitment under the SPP and SDP statutes and that
commitment is the least-restrictive alternative.

A. Sexual Psychopathic Personality

Commitment
as an SPP requires a showing of a habitual course of misconduct in sexual
matters and an utter lack of power to control sexual impulses so that it is likely the person will attack or
otherwise inflict injury on the objects of their uncontrollable desire. Linehan I, 518 N.W.2d at 613. Fugelseth argues that the evidence fails to
show that he has an utter lack of power to control sexual impulses. To determine whether a person lacks control
over his sexual impulses, section 253B.02, subdivision 18b, requires a court to
consider: (1) “the nature and frequency of the sexual assaults;” (2) “the
degree of violence involved;” (3) “the relationship (or lack thereof) between
the offender and the victims;” (4) “the offender’s attitude and mood;” (5) “the
offender’s medical and family history;” (6) “the results of psychological and
psychiatric testing and evaluation;” and (7) “such other factors that bear on
the predatory sex impulse and the lack of power to control it.” Blodgett, 510 N.W.2d at 915. Expert
testimony on the issue is also relevant.
See Linehan I, 518 N.W.2d at 613.

The
district court applied the Blodgett factors in reaching its conclusion
that Fugelseth has an utter lack of power to control his sexual impulses and
meets the criteria of an SPP. The
district court noted that Fugelseth had committed approximately 200 acts of
sexual misconduct, ranging from indecent exposure to oral and anal intercourse,
against a large number of male and female victims ranging in age from three to
14; that he facilitated much of the abuse through grooming behavior and much of
the misconduct occurred when he was in a position of trust or authority over
the victims; that psychological evaluations indicate that Fugelseth’s attitude
toward his misconduct has been characterized by feelings of entitlement, lack
of remorse, minimization and denial; that he continued to offend while he was
subject to therapeutic and punitive consequences of previous convictions for
sexual misconduct; that he continued to place himself in situations where
sexual misconduct could occur; that he has never exhibited a period of real
control over his behavior; and that he continues to experience deviant arousal. The testimony of the experts supports the
court’s conclusion. Thus, we conclude
that there is clear and convincing evidence to support the district court’s
conclusion that Fugelseth has an utter lack of power to control his sexual
impulses and that the district court did not err in committing Fugelseth as a
person having a sexually psychopathic personality.

B. Sexually Dangerous Person

Under
Minnesota law, an SDP is “a person who: (1) has engaged in a course of harmful
sexual conduct as defined in [Minn. Stat. § 253B.02, subd. 7a]; (2) has
manifested a sexual, personality, or other mental disorder or dysfunction; and
(3) as a result, is likely to engage in acts of harmful sexual conduct.” Minn. Stat. § 253B.02, subd. 18c(a). Fugelseth argues that, because both Dr.
Riedel and Dr. Hoberman testified that there is nothing in his sexual disorder
of pedophilia that indicates a lack of ability to control oneself, the district
court erred in committing him as an SDP because the evidence does not indicate
that his present disorder makes him likely to engage in harmful sexual
conduct. But Fugelseth’s argument
ignores the fact that both experts diagnosed him as having a mental or
personality disorder in addition to his pedophilia. Dr. Hoberman testified
that, as a result of this other mental disorder, Fugelseth has difficulty
controlling his behavior and that his mental abnormalities predispose him to
difficulty controlling his behavior.
The district court concluded from this evidence that Fugelseth’s “sexual
and personality disorders render it difficult” for him to control his sexual
urges. We conclude that there is clear
and convincing evidence to support the district court’s conclusion and that the
court did not err in committing Fugelseth as a sexually dangerous person.

C. Least-Restrictive Alternative

Finally,
Fugelseth argues that the district court erred in determining that he had not
met his burden of establishing that a less-restrictive treatment option than
commitment to MSOP was available. Minn.
Stat. § 253B.185, subd. 1, provides that “[i]n commitments under this section,
the court shall commit the patient to a secure treatment facility unless the
patient establishes by clear and convincing evidence that a less restrictive
treatment program is available that is consistent with the patient’s treatment
needs and the requirements of public safety.”
Minn. Stat. § 253B.185, subd. 1 (2002).

Fugelseth
proposed that, rather than being committed to MSOP, he be allowed to enroll in
the Damascus Way Reentry Center in Golden Valley. As evidence that this was a suitable alternative, Fugelseth cites
his success at the FCI-Butner treatment program, the recommendation of an
FCI-Butner staff psychologist that he be transferred into the community under
strict supervision, and the fact that the results of a Sex Offender Need
Assessment Rating (“SONAR”) conducted by Dr. Riedel indicated that he was a low
risk to re-offend. But Dr. Hoberman and
Dr. Riedel both testified that Fugelseth requires intensive, structured therapy. Such therapy is not offered at Damascus
Way. Additionally, Dr. Hoberman
testified that Fugelseth poses a danger to public safety if released into the
community. Damascus Way is not a secure
facility. Dr. Hoberman also testified
that the programs available in the community would not be as effective as the
MSOP program, and pointed out that Fugelseth’s treatment in community-based
programs in the past has been unsuccessful.
Fugelseth did not present clear and convincing evidence that an adequate
less-restrictive treatment program was available.

Fugelseth
has also asked that we strike three documents from the appendix of the state’s
appellate brief because they are not part of the record in this case and has
asked that we sanction the state by awarding him attorney’s fees for the costs
of preparing the motion to strike the documents. The questioned documents are a copy of Governor Pawlenty’s
executive order of July 2003, an Associated Press news article concerning a
patient who was released from MSOP, and a “Consent for Release of Information”
form granting permission for officials at FCI-Butner to release treatment
records to the Minnesota Attorney General’s office.

The
executive order is a public record that we could have referred to in the course
of our own research. SeeState
v. Rewitzer, 617 N.W.2d 407, 411 (Minn. 2000) (refusing to strike documents
introduced on appeal when documents were matters of public record and court was
free to refer to them in the course of its own research). The Associated Press article concerned facts
that were introduced by Fugelseth in his brief and was not offered either
as evidence or to establish facts outside of the record and we see no reason
why it should be stricken. See State
v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001). And, contrary to Fugelseth’s assertion, the consent form was
included in the substantial district court record for this case. Fugelseth’s motion to strike and motion for
attorney’s fees are denied.